# Jones v. Byrnes > Court of Appeals for the Sixth Circuit · November 9, 2009 · 585 F.3d 971 URL: https://www.frixlaw.com/law-library/cases/9557429 ## Case - **Full name:** Genora JONES, as the Personal Representative of the Estate of Clayton Jones, Plaintiff-Appellant, v. Scott BYRNES, Et Al., DefendantsAppellees - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** November 9, 2009 - **Citations:** 585 F.3d 971; 2009 U.S. App. LEXIS 24476; 2009 WL 3718110 - **Precedential status:** Published - **Opinion:** Concurrence by Martin - **Judges:** Martin, Guy, McKeague - **Cited by:** 97 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9557429 ## How later opinions describe it (automated extraction) - explaining that “Pearson left in place [Saucier’s] core analysis” and that it “need not decide whether a constitutional violation has occurred if we find that the officer’s actions were nevertheless reasonable” - Applying Lewis’s shocks-the-conscience standard in case where the police chase at issue “reach[ed] sixty to seventy miles per hour.” ## Opinion text BOYCE F. MARTIN, JR., Circuit Judge, concurring. I concur in the Court’s disposition of this case. Mr. Jones’s death, though truly terrible, was not the result of a constitutional violation. I write separately, however, to discuss a troubling problem highlighted by this case and to suggest an approach to apply in future cases that addresses this problem. As the Court notes, neither party has cited a single example of a case, from any *979 circuit or district court, in which an officer’s actions in a police chase have ultimately been found to shock the conscience, and I am aware of no such case. Thus, it appears that the set of examples of constitutionally impermissible police-pursuit behavior is currently an empty one. Although surprising, this was not especially troubling under the mandatory analytical regime set forth in Saucier v. Katz, 533 U.S. 194 , 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). Under Katz, even if a given police-pursuit case did not amount to a constitutional violation, the court would still have to go through the exercise of explaining why the police officer’s actions did not shock the conscience. However — at least in theory — sometime in the future a district court will find, and an appellate court will agree, that a police-pursuit ease transgressed the Fourteenth Amendment threshold. 1 And if Katz still controlled, the court confronted with this future case would, as a matter of law, have to confront the constitutional question head on, finally establishing a positive data point announcing that this police action, whatever it is, crosses the line. But Katz is no longer the law of the land; Pearson v. Callahan, — U.S. -, 129 S.Ct. 808 , 172 L.Ed.2d 565 (2009), is. Under Pearson , courts are now generally free to address the two questions set forth in Katz in whichever order they deem appropriate in a particular case. In practice, this means that a court may avoid deciding whether a constitutional violation occurred if the court is of the belief that, even assuming a violation, it was not clearly established at the time of the incident that the officer’s actions crossed whatever constitutional line is at play in a given case. Usually, traditional constitutional avoidance policies would counsel in favor of doing just that. These avoidance policies are why the Supreme Court’s decision in Pearson makes sense now. In short, Katz generally served its purpose — in most section 1983 cases there are now sufficient data points to define the scope of constitutionally impermissible behavior. Thus, there is less of a need to continue developing the body of constitutional precedent, so the constitutional avoidance policies can come back into play. However, police-pursuit cases do not fall within the group of section 1983 cases for which Katz accomplished its goal of developing constitutional precedent because the set of examples of impermissible police-pursuit behavior remains empty. I am therefore concerned about applying Pearson in future police-pursuit cases. Except in the most overwhelmingly egregious case, an officer that crosses the Fourteenth Amendment’s threshold likely still would be entitled to qualified immunity because it was not clearly established that his specific actions were of the kind that crossed the line. Under Pearson , the court confronted with this officer’s actions could avoid the constitutional question entirely and resolve the case on the clearly established prong. And so too could all subsequent courts. This, of course, results in a self-perpetuating cycle in Fourteenth Amendment police-pursuit cases: district courts will skip the constitutional inquiry in favor of disposing of cases on the “clearly established” prong, so there will never be an actual *980 finding that an officer’s conduct shocks the conscience, so courts will continue to be able to dispose of cases on the “clearly-established” prong, and so on. We could see a string of cases with the same refrain: “Even if the officer violated the Fourteenth Amendment in continuing this pursuit, it was not clearly established at the time of the incident that his actions violated plaintiffs constitutional rights. We therefore pass on the question whether a constitutional violation actually occurred, because we have discretion to do so under Pearson , and find that the defendant is entitled to qualified immunity.” The set of conscience-shocking fact patterns could remain empty, and no body of case law will develop to define the parameters of what police conduct in a pursuit case could shock the conscience. This is a troubling potential because reflexive exercise of Pearson discretion in police-pursuit cases could result in essentially writing that cause of action off the books. Thankfully, I believe Pearson anticipates this very scenario and provides a safeguard against the extinction of difficult, but nonetheless valid, constitutional tort claims. As I understand Pearson , the Supreme Court merely lifted the requirement that lower courts implement the Katz analytical sequence in all qualified immunity cases. However, Pearson “continue[d] to recognize that [the Katz protocol] is often beneficial.” 129 S.Ct. at 818 . Furthermore, Justice Alito’s opinion explicitly addresses this very situation, where the body of constitutional law is thin or non-existent: “In addition, the Saucier Court was certainly correct in noting that the two-step procedure promotes the development of constitutional precedent and is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable.” Id. (emphasis added). I therefore read Pearson to encourage and support continued development of the constitutional law using a more targeted approach in small subsets of qualified immunity cases, such as police-pursuit cases, where the body of law still needs fattening. 2 I believe this to be the proper approach and applaud the Court’s decision to address the constitutional question in this case even though not required under Pearson . I further encourage the district courts and future panels of this Court to follow suit in these kinds of cases by continuing to employ Katz’s analytical sequence. . As the Court's opinion notes, several district courts have believed that they have stumbled upon the fact pattern that could shock a jury's conscience and have denied qualified immunity at summary judgment, only to be reversed by the court of appeals. See supra at 10 n. 4. At some point, a district court will come to the same conclusion as these previous district courts and, this time, the court of appeals will agree. . Although I have not surveyed the entire body of section 1983 case law to find other constitutional claims for which there are very few or no examples of impermissible state action, I am confident that they exist. My concern about Pearson resulting in a failure to adequately develop the constitutional precedent applies to those other constitutional claims just as strongly as it applies to police-pursuit cases, and so too does my suggestion of applying Katz in future cases that fall within these subsets. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9557429. Public record. Not legal advice.